Reese v. Industrial Commission , 55 Ohio App. 76 ( 1936 )

Plaintiff, Alexander Reese, was sent by an employment bureau to the private residence of one Samuel Kramer, for the purpose of washing walls. He worked at the home for five days, and on the sixth day he fell from a scaffold and suffered injuries to his back. The injury and disability are not denied, but the Industrial Commission of Ohio held that Reese was not entitled to compensation for the reason that he was not an employee of Mr. Kramer within the meaning of the Workmen's Compensation Act.

The only question before us, therefore, is whether plaintiff is to be regarded as an employee. Mr. Kramer, in whose home this plaintiff was employed and injured, was engaged in the retail shoe business. He also owned and operated a number of apartment houses.

In his other ventures he was unquestionably an employer within the meaning of the compensation act. Reese cannot claim the benefit of an employment connected with either the shoe business or the apartment houses operated and conducted by Mr. Kramer. His work was solely domestic, as it involved the washing of walls and ceilings in and about the private home of Mr. Kramer.

It appears from the record that Mr. Kramer made application to the Industrial Commission for Workmen's Compensation coverage, and that his periodic payroll reports included two separate payroll classifications: (1) apartment house employees, (2) domestic help. It appears further that Mr. Kramer employed a maid, and that he reported a payroll for domestic service of $12 a week. In making his report to the Industrial Commission he made one report which included wages of persons working at the apartment houses and also wages of the maid. He paid two different rates of premiums for the two different classifications. In reporting the payroll for domestic help he confined the report entirely to the wages paid to the maid, and also the expense of her upkeep.

A study of the Workmen's Compensation statutes reveals that employers, subject to the provisions of the act, may fall either under the compulsory provisions or the elective provisions of the law. Sections 1465-60 and 1465-61, General Code, deal with the compulsory provisions. They provide that every person, firm or private corporation that has in service three or more workmen or operators regularly in the same business, in or about the same establishment, under any contract of hire, express or implied, oral or written, is subject to the provisions of the act. These sections deal with what we term for convenience "compulsory state insurance."

Section 1465-71, General Code, provides:

"Any employer who employs less than three workmen or operatives regularly in the same business, or in or about the same establishment, who shall pay into the state insurance fund the premiums provided by this act, shall not be liable to respond in damages at common law or by statute, save as hereinafter provided, for injuries or death of any such employes, wherever occurring, during the period covered by such premiums, provided the injured employe has remained in his service with notice that his employer has paid into the state insurance fund the premiums provided by this act; the continuation in the service of such employer with such notice shall be deemed a waiver by the employe of his right of action as aforesaid."

This section deals with employers who are not compelled to pay into the State Insurance Fund, but elect to pay into the same in order to get the benefits and protection of the Workmen's Compensation Act.

We are of the opinion that once an employer elects to pay into the State Insurance Fund he becomes subject to the provisions of the act. One cannot claim benefits without assuming obligations. By his contract with the state he enters into a relationship where the benefits as well as the burdens devolving upon the subscriber apply to him. By electing to subscribe to the State Insurance Fund he gained the protective features of the act. He must likewise be said to have assumed its burdens. He reported a payroll for domestic help. It became his duty to report the entire payroll so as to protect all persons doing work in and about the house, in addition to the domestic servant. The employer's failure to so report does not affect the rights of the employee to claim the benefits of the Workmen's Compensation Act.

Section 1465-72, General Code, provides:

"The state liability board of awards shall disburse the state insurance fund to such employes of employers as have paid into said fund the premiums applicable to the classes to which they belong, who have been injured in the course of their employment, wheresoever such injuries have occurred, and which have not been purposely self-inflicted, or to their dependents in case death has ensued."

The section is couched in general language and applies to all employees of employers who have paid into the fund, whether the payment was made under the compulsory provision or the elective provision of the act.

A further claim is made by the Industrial Commission that Alexander Reese was merely a casual employee and as such is expressly excepted from the benefits of the act.

In the case of State, ex rel. Bettman, v. Christen, 128 Ohio St. 56, 190 N.E. 233, the Supreme Court laid down the rule as to what constitutes regular employment, as distinguished from casual employment. We quote the following from the syllabus:

"1. Sections 1465-60 and 1465-61, General Code, are in parimateria and must be construed together.

"2. Workmen are regular employees, within the purview of Sections 1465-60 and 1465-61, General Code, so long as they are hired to do work in the usual course of the trade, business, profession or occupation of the employer.

"3. In order that a person's employment shall be deemed to be in the usual course of the trade, business, profession or occupation of the employer, it must be employment for work of the kind required in the business of the employer and it must be in conformity to the established scheme or system of the business. Such scheme or system comprehends the nature of the enterprise, its organization, its personnel requirements and its methods of operation. The time for which such employment has continued is not controlling."

If Reese had not been hired to do the work of cleaning walls, the task would have necessarily fallen upon some member of the household, or upon the maid. It was, therefore, an employment in conformity to the established scheme of running a household.

A further claim is made by the Industrial Commission that the payroll for domestic help furnished by Mr. Kramer, and the premiums paid by him based upon such payroll, did not include any other employee except the domestic servant. In our opinion once the employer by his own election becomes a subscriber to the State Insurance Fund his failure to make a full report or to pay a sufficient premium does not change the status of the employee to the State Insurance Fund. There are remedies provided by law against employers who do not pay sufficient premiums, or who do not report sufficient payrolls.

The case of State, ex rel. Davis, v. Industrial Commission ofOhio, 118 Ohio St. 340, 161 N.E. 32, deals with this subject. On page 343 of the opinion the court held that the various sections of the Industrial Compensation Act show a legislative purpose to protect the employee of an employer employing five or more workmen, where the employer has not complied with the workmen's compensation law. We add to it by saying that the employer in the case at bar, having elected to pay into the insurance fund, and having thereby gained the benefits of the compensation act, is subject to the same rule applicable to the compulsory payment into the insurance fund, as the benefits and the burdens go together.

We find no error in the decision of the Court of Common Pleas, and the case is affirmed.

Judgment affirmed.

TERRELL, J., concurs in judgment.

LIEGHLEY, P.J., dissents.